Week 1 Constitution of UK

What definition did Professor Albert Venn Dicey, the British constitutional theorist and author give for "constitution" (1885)?

"That set of rules which directly or indirectly affect the distribution and exercise of sovereign power in the state"

How did the Magna Carta Libertatum limit the monarch's powers?

- "The Great Charter of Liberties" - Limit on king's power to impose taxes without consent, protection from illegal imprisonment, access to swift/impartial justice and return of common land - Often referred to as first & fundamental constitutional document of the UK, establishing that the monarch was not above the law

Per Laws LJ in Thoburn v Sunderland City Council [2002] 3 W.L.R 247 (p.62)

- "we should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes [...] in my opinion a constitutional statute is one which (a) conditions the legal relationship between the citizen and the state in some general, overarching manner and (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights".

What are the two other ways that a general election can be triggered?

- A 'vote of no confidence in Her Majesty's Government' (i.e. the current government) - A motion for a general election agreed by a two thirds majority of the 650 seats in the House of Commons.

What is the House of Commons?

- A representative elected body of 650 members from different political parties.

What is constitutional and administrative law?

- About where the limits to governmental power lie - Government of UK taken many forms (e.g. Celtic tribal leaders, Roman governors, Anglo-Saxon kings, Norman kings, rulers who believed they had a 'divine right' to rule as they pleased)

What was the Act of Settlement 1700?

- Act of Settlement 1700 - created a paid, independent judiciary - NB: universal suffrage wouldn't happen for another 225 years

What was the Act of Union 1707?

- Act of Union 1707A - formally joined the Parliaments of England and Scotland.

Are Acts of Parliament written sources of constitutional rules?

- Acts of Parliament are the primary source of constitutional law in the UK. However, not all Acts of Parliament are constitutional - this classification depends on the subject matter of the legislation.

What are the key functions of the Speaker?

- An MP who has been elected to the office by other MPs - By convention, the Speaker remains politically impartial and so must resign from their political party on appointment. They still work as an MP. - The Speaker has full authority to enforce the rules of behaviour in the House of Commons, for example by suspending MPs who refuse to behave appropriately.

What is the House of Lords?

- An unelected body of appointed life peers, hereditary peers and bishops.

When was the first parliament?

- Anglo-Saxon Witan - antecedent to Parliament or House of Lords - Parliament as a word first recorded 1236 - Meant an assembly of prominent men summoned at will of King- once/twice a year, advise on matters of govt/foreign policy (waging war/strengthening defences)

What are some of the monarch's remaining powers?

- Appointing the Prime Minister - Dissolving Parliament in some circumstances - Giving 'Royal Assent' to Acts of Parliament - Law-making power of Parliament - described as being vested in the 'Queen-in-Parliament'

How is the constitution of the UK more flexible than other more entrenched constitutions?

- As the constitution of the United Kingdom is not codified and has evolved over time, it has the capacity to continue to change and evolve without - in most cases - recourse to any special legislative procedure. - In contrast, in an 'entrenched' constitution like that of the United States, the constitution is the highest form of law. - In the US, constitutional amendments must be passed by a two-thirds majority in both houses in Congress (the legislature), and subsequently ratified by three quarters of individual states. (This represents a particularly heavily entrenched constitution.) - The advantage of an entrenched constitution is certainty and greater constitutional stability.

What was Ashby v White (1703)?

- Ashby v White (1703) - established that the right to vote was a constitutional right - NB: universal suffrage wouldn't happen for another 225 years

What was constitutional monarchy?

- Authority derives from and is limited by constitution

From the 13th century onwards, why were more local landowners becoming involved in parliament?

- Because of taxation levy for war on their consent - King depended on landowners for efficient collection of taxes - Precursor to House of Commons - no parliament after 1325 met without their presence - New laws not only initiated by Crown but also by Commons

List the 5 core government departments for the purposes of constitutional law.

- Cabinet Office (responsible, amongst other matters, for national emergencies and constitutional reform) - Foreign Office (responsible for relations with foreign states) - Home Office (responsible for the security of the United Kingdom and policing) - Ministry of Justice (responsible for the administration of the Courts and Tribunals system, and prisons) - Treasury (responsible for economic policy, including public spending, i.e. the allocation of taxes paid by the public)

How did political revolutions abroad in the 1700s and 1800s influence democracy in the UK?

- Changes in political ideas and structures outside the British Isles have influenced and, in some cases inhibited, the development of a modern parliamentary democracy in the U.K. - 1776: the war of American Independence from Great Britain, resulting from resistance to government regulation of trade and imposition of taxes. - 1789: the French Revolution, violently overthrowing the autocratic monarchy and establishing the French republic. - 1848: Revolutions throughout Europe aimed at the creation of independent nation states and the removal of monarchical structures.

What were some of the earliest limits on the monarch's power?

- Charter of Liberties - granted by Henry I, youngest son of William the Conqueror, to senior noblemen (barons) on his coronation in 1100 - Bound the King to laws regarding treatment of nobles, church officials and other individuals (e.g. their heirs) - Raising of taxes for purpose of waging wars -> source of frequent conflict between Monarchy and aristocracy - Richard I's joining Third Crusade in 1190 - imposition of heavy taxes, his successor King John signed Magna Carta under pressure from aristocracy 1215

What does the Fixed Term Parliaments Act of 2011 decide?

- General elections are held - first Thursday in May at five-year intervals.

In 2009, what happened to the House of Lords' judicial function?

- Formally transferred to the Supreme Court - The incumbent law Lords became the first Justices of the Supreme Court. - The Supreme Court sits in Westminster, in a building on the opposite side of Parliament Square to the Houses of Parliament. - Its proceedings are livestreamed, and members of the public can attend hearings.

What are the key functions of parliament?

- Debate and scrutinise proposed legislation - Propose amendments to legislation - Extract information from the executive and hold it to account on its policies and acts - Scrutinise public expenditure and taxation

What is a constitution?

- Defined: 'a code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government and defines the relationship between these and the public' (Vernon Bogdanor, Constitutions in Democratic Politics, 1988) - Modern constitutions in democratic states depend for their moral/political validity on the consent of public to be governed according to constitution principles

What concerns did the Constitutional Reform Act of 2005 address?

- Designed to address concerns that the separation of powers between the judiciary and the other two bodies of state was blurred. - One example of this was that, prior to the 2005 Act, the Lord Chancellor was both a government minister and a senior judge, and also acted as the presiding officer in the chamber of the House of Lords (the equivalent of the Speaker). The 2005 Act brought in the following key changes: - Reformed the office of the Lord Chancellor, so that judicial functions have largely been taken over by the Lord Chief Justice. - Established the Supreme Court, as a separate entity from the Appellate Committee of the House of Lords (which had previously been the most senior court of the United Kingdom). - Created the Judicial Appointments Commission for the appointment of judges. Prior to this, the Queen had appointed judges on the 'advice' of the Lord Chancellor.

What is the UK?

- Did not exist until Acts of Union 1800 - unified Kingdom of GB w/ Kingdom of Ireland - Prior to 1800, 2 kingdoms were in 'personal union' (i.e. same monarch, but boundaries, laws, interests distinct) - First meeting of merged Parliament of the United Kingdom = 22 January 1801 - Following independence for Irish Free State (now the Republic of Ireland) in 1922, the United Kingdom has consisted of England, Wales, Scotland and Northern Ireland, which remains the current position

What was law like in the Anglo-Saxon kingdoms?

- End of Roman occupation in England/Wales was precipitated by and overlapped with the migration of Germanic tribes from the European mainland - The Anglo-Saxon Chronicle (a history of the Anglo Saxons first written in the late 9th Century and updated until the early 12th century) - arrival of -Saxon invaders landing at different locations around the coast of England to conquer - The four main Anglo-Saxon kingdoms were East Anglia, Mercia, Northumbria and Wessex. Essex, Kent and Sussex were minor kingdoms. - Anglo-Saxon kings convened regular councils of landowners and religious leaders, known as the 'Witan' (meaning 'wise') - Although they were not elected by popular vote, these councils can be seen as the precursor to our modern Parliament

1066 - how did this change law in the UK?

- Duke William of Normandy - dispossessed English landowners, giving property to Norman subjects, and removed from senior govt/religious positions - Maitland - "the valuable thing that the Norman conquest gives us is a strong kingship which makes for national unity" Power of monarch - 1086 - Domesday Book to be compiled - Detailed survey - about the land, who occupied it, what dues he ought to have by the year from the shire - Purpose to see how much money could be raised in taxes - Only 12% population England - free men & women, rest serfs - Monarch's power is now symbolic

What are the functions of MPs?

- Each MP has a 'constituency' - geographical area - elected by the people to represent, in Parliament - MPs can represent people's interests (e.g. asking questions of the government in debates and voting on proposed laws) - MPs divide their time between working in the House of Commons, for their political party, and in their constituency - Constituency work usually takes the form of a weekly 'surgery' - either in their constituency office or (in more remote and inaccessible areas) in public venues such as village halls or pubs Local people can talk to their MP about any matters which concern them - In September 2019, ten political parties were represented in Parliament. - MPs' local areas are called 'constituencies', and they are said to have a "seat in Parliament".

In the 16th century what happened to the House of Commons?

- End 16th century - House of Commons grew in size - prosperity of middle classes

Entick v Carrington (1765) 19 St Tr 1029

- Entick, who was suspected of writing seditious (anti-government) pamphlets, had his property searched by agents of the King "with force and arms" - Entick sued the agents for trespass - The agents' defence was that they acted on the authority of a warrant from Lord Halifax, one of the King's Ministers - The trial judge was Lord Camden, Chief Justice of the Common Pleas, who found for Entick, holding that Lord Halifax had no right under statute or precedent to issue a search warrant - This judgment established the fundamental constitutional rule that the state cannot exercise power unless that power is expressly authorised by law

What was The Case of Proclamations [1610] EWHC KB J22?

- Est. Monarch could only make new laws through Parliament - 2 essential principles stated - cont. to be cited in legal arguments about limits of govt power - "the King [...] cannot change any part of the common law, or statute law, or customs of the realm" and "the King hath no prerogative [power] but that which the law of the land allows him".

When were the first written laws of England introduced?

- Ethelbert, King of Kent (600 AD) - Kingdom of England formed 927AD, under King Athelstan - Post-Roman England divided into administrative units ('shires') run by officials ('sheriffs') - Royal court (King and advisers) - centre of government - System of local & regional tribunals for resolution of legal disputes - Variation: between laws on local level, difference depended on shire

What broad principles are contained within the idea of 'constitutionalism'?

- Exercise of government power must be within legal limits, and accountable in law. - Power is dispersed between the organisations of the state so power does not become concentrated in one element. - The government is accountable to the people. - The fundamental rights and freedoms of citizens are protected.

What was Roman Law?

- First written records of law in the British Isles are of Roman origin, but the Romans conquered an already organised society of Celtic British tries - Roman rule extended over whole of what is now England and Wales and southern Scotland from 43 AD to 407 AD - Druids responsible for organising worship, divination and judicial procedure - according to Julius Caesar who invaded in 55 and 54 BC - Maintenance of Roman rules over tribes was not straightforward - Permanent, expensive military outposts were required - Britannia was in principle under direct rule of Emperor, but in practice presided over by a governor who was a member of the Senate in Rome - With assistance of a legal adviser (legatus juridicus) - governor oversaw military/financial admin of Britannia (essential purpose was to extract taxes/suppress tribal dissent) & make decisions on important legal cases - Day-to-day disputes solved at tribal level - Roman rule collapsed - AD 407 - Never fully rooted Roman law, but recognisably Roman legal concepts in the law of UK today - Roman law became foundation of modern legal systems in most of Western Europe - UK - different direction "common law" - under a single monarch

What new convention emerged from a parliamentary vote on military engagement in Syria in 2013?

- Following the parliamentary vote on military engagement in Syria in 2013, (building on the 2003 vote in relation to war in Iraq), it is arguable that a new convention has emerged: that the House of Commons should be consulted before the government embarks on any major foreign policy initiatives involving the use of armed forces.

What is the basic structure of government in the UK?

- Her Majesty the Queen -> The legislature (parliament) -> The executive -> The judiciary

What does local government do?

- It is important to understand the difference between central government (the government departments headed by Secretaries of State), and local government, e.g. county or district councils. - Legislation passed by Parliament regulates the structure, powers and duties of local government bodies. - The structure of local authorities is complex and varies across the United Kingdom. - Local authorities are responsible for the implementation of central government policies at the local level - e.g. for the collection of council tax, the maintenance of highways, and decisions about building new housing, as well as applying their own local policies. - Key constitutional principles limiting the power of central government also apply to local government, and the exercise of local government power is reviewable by the administrative court in the same way

Explain Gina Miller v the Prime Minister.

- In September 2019, in the wider context of the imminent departure of the United Kingdom from the European Union, Gina Miller brought a legal challenge to the advice given to Her Majesty the Queen by Boris Johnson, the Prime Minister, to prorogue Parliament - As a result of the Prime Minister's advice, the Queen prorogued Parliament for a period of five weeks - The Supreme Court decided that the Prime Minister's advice was unlawful because it had the effect of: "frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive [...] This prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances [...] the effect upon the fundamentals of our democracy was extreme". Why was this important? - This judgment is of critical importance for many reasons, but in this context it illustrates both the convention that the monarch acts only on the Prime Minister's advice, and that the exercise of prerogative powers by the Executive is not immune from challenge in the court

What do civil servants do?

- In contrast to their politically appointed leaders, the civil servants who work in government departments are politically neutral. - They do not have to move jobs when there is a change of government.

How is 'The Crown' used in the legal system?

- In practice, this term used - E.g. the names of criminal cases are written like this : R v Smith, and said like this: "the Crown against Smith" or "the Crown and Smith" - In reality, CPS starts proceedings and judicial review proceedings are brought in the name of the Crown, but in reality they are started by individuals - This reflects the fact that in a judicial review, the court is dealing with a public law matter, i.e. a legal problem that affects society beyond the interests of the individual - You will also hear Judges referred to as "Her Majesty's judges", but Queen does not personally appoint them

Why did the UK government need conventions?

- In the framework of an uncodified constitution, conventions are a flexible way of 'filling in the gaps' and developing constitutional rules informally, without recourse to the law. - Conventions underpin the operation of the Cabinet system, defining what Ministers are responsible for, and how they should conduct themselves. - Conventions also regulate relations between the House of Lords and the House of Commons, between the Executive and the Monarch, and between the judiciary and the other organisations of the state.

What are the key functions of the Prime Minister?

- It is usually the case that the leader of the ruling political party, elected as such by its members (membership of political parties is, in principle, open to all British citizens), becomes the Prime Minister when the party wins a general election. - However, there can be a change of Prime Minister other than as a result of a general election, for example when the incumbent resigns. In that event, the Prime Minister will be elected by the members of his or her political party. - The Prime Minister is the Queen's principal adviser, chairs the Cabinet - the group of senior Ministers in charge of government departments - and has overall responsibility for the organisation of the government (the executive). - One of the key functions of the House of Commons is to hold the government to account. Each Wednesday at midday, when Parliament is sitting, 'Prime Ministers' Questions' takes place in the House of Commons. The Prime Minister fields questions from MPs on current political issues.

The judicial oath reflects two key constitutional principles; what are they?

- Judgment according to applicable law ("after the laws and usages of this realm") - Impartial and independent judgement ("without fear or favour ...")

What did James I believe?

- King James I under Scottish and English Crowns united in 1603 - fervent believer in "divine right of kings" - higher men, right to impose new laws by royal prerogative

The Crown (government) and its ministers are subject to what constitutional principles?

- Laws may not be suspended: the government may not suspend any law without the consent of Parliament (Bill of Rights, s. 1). - Taxation: All taxes require the consent of Parliament. They must be set out in legislation. - Influence of Magna Carta: the restrictions imposed on the arbitrary imprisonment and punishment of citizens remain an important limitation on government power today and can be traced back a long way into history. - Freedom from arrest: there are no longer any common law powers exercisable by the monarch or by government ministers, to issue warrants of search or arrest. - Impeachment: Parliament can inquire into alleged illegal acts by ministers (though this power has seldom been exercised).

Where does the UK's constitutional law come from?

- Legislation - Case law - Custom and practice

How is the UK's constitutional law built on judicial precedent?

- Many principles of constitutional law (specifically, the rights of citizens in the face of action by the state) have originated in the courts through the creation of common law.

What is meant by a cabinet reshuffle?

- Ministers may also change departments during the period of time their political party is in power. These changes, also made by the Prime Minister, are known as a 'Cabinet reshuffle'.

What are bills?

- Most types of primary legislation (Bills) require approval by the House of Lords before the Sovereign gives 'royal assent' and the Bills become Acts of Parliament. - However, 'Government defeats' in the Lords - when legislative proposals by the government are not accepted - usually result in amendments to the legislation by government, rather than wholesale defeat of the Bill. - The House of Lords acts as an important check on the exercise of government power.

What do Parliamentary Committees do?

- Much of Parliamentary work consists of sitting on committees, made up of MPs and/or members of the House of Lords. - The purpose of these committees is to scrutinise the work of the government, and examine proposals for primary and secondary legislation.

What is parliament?

- Parliament - supreme legislative (law-making) body of UK - 2 'Houses', under and within the symbolic power of the Queen. - The sovereign in her legislative role, acting with the advice and consent of Parliament (the Queen does not routinely sit in Parliament).

What did Charles I believe?

- Proponent of "divine right of kings" - Asserted right levy tax without Parliament - contrary to MC - Imposed a "Ship Money Tax" - first only on coastline for protection, but then on inland counties - Deeply unpopular - Signed a Petition of Right in 1628 - Promised abide by MC, seek Parliamentary approval before levying tax, but then prorogued Parliament and imposed taxes without authority - Civil wars, execution of Charles I by Oliver Cromwell's anti-monarchist army 1649 - 1649-1660 = republican 'Commonwealth' - Restoration of Monarchy in 1660 - Charles II's successor, James II, revived idea of "divine right of kings" but forced out of power by Parliament in 1688, in a coup known as "Glorious Revolution"

What did the House of Lords Act of 1999 do?

- Reduced the number of hereditary peers who may sit and vote in the House to 91 - The remainder of members are life peers (granted peerage by the Sovereign, for life), and bishops. - Many peers are also members of political parties. - However, there are also over a hundred 'crossbench' peers who are not party-political.

Who are the accounting officers?

- Responsible for preparation of department accounts - They are appointed by Treasury, pursuant to the Government Resources and Accounts Act 2000 - The allocation of funds to government departments requires the approval of Parliament.

What are some of the remaining prerogative powers?

- Summon and prorogue Parliament - Appoint and dismiss government ministers - Issue passports - Declare war (although in practice this has arguably been modified by a convention which has developed since the invasion of Iraq in 2003). - Negotiation of treaties

What was absolute monarchy?

- Supreme authority not restricted by laws or customs

How does the House of Lords function?

- The House of Lords is not an elected body. It consists of 775 'peers'. - A peer is someone with a high-ranking inherited noble title, such as a Duke, Marquess or Earl, or anyone who has been made a peer during their lifetime. - Peerages have always been granted by the Sovereign. - Hereditary peerages are passed down through families. - Life peerages are also granted by the Sovereign, on the advice of the Prime Minister (this is an example of a prerogative power). - For centuries, hereditary peers had the right to sit and vote in the House of Lords.

How much power does the House of Lords have?

- The House of Lords is sometimes known as the 'Upper House', but this does not mean it has more power than the House of Commons. Because the House of Commons is democratically elected, it is the focus of power and authority in the United Kingdom. - The House of Commons alone is responsible for making decisions on public finances, for example legislation which changes tax law, or introduces new taxes. The Lords can consider but not block or amend this legislation. - The House of Lords may scrutinise and make amendments to legislation approved by the House of Commons.

What conventions relate to the legislature as established in 2011?

- The House of Lords should defer to the House of Commons. - The House of Lords should not reject at second reading any government legislation that has been passed by the House of Commons and that carries out a manifesto commitment (i.e. a promise to the electorate in the course of a general election). This is known as the Salisbury Addison convention. - Financial bills (e.g. relating to government expenditure and taxation) are only introduced by a Cabinet minister in the House of Commons. - The Westminster Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without the consent of the devolved administration (the Sewel Convention).

What statutory safeguards are in place to prevent excessive influence by the Lord Chancellor over judicial decision-making?

- The Lord Chancellor has a legal duty to uphold the independence of the judiciary (s. 3(1) Constitutional Reform Act 2005). - The Lord Chancellor must not seek to influence particular judicial decisions through any special access to the judiciary (s.3(4) CRA).

What does the Lord Chief Justice do?

- The Lord Chief Justice is appointed by a special panel convened by the Judicial Appointments Commission. - Appointments are generally made from the ranks of current Court of Appeal judges. The Lord Chief Justice is the Head of the Judiciary of England and Wales, and the President of the Courts of England and Wales. The key responsibilities of this office are: - Representing the views of the judiciary of England and Wales to Parliament and government. - The welfare, training and guidance of the judiciary of England and Wales. (The provision of resources for the judiciary are allotted by the Lord Chancellor). - The deployment of judges and the allocation of work in courts in England and Wales.

What is devolution?

- The Parliament of the United Kingdom sitting at Westminster is the principal legislative authority in the UK. 'Devolution' refers to the grant, by the Parliament of the United Kingdom, of legislative powers to the 'devolved' legislatures and administrations (executives), which are:

Who is the Lord Chancellor?

- The Queen appoints the Lord Chancellor on the advice of the Prime Minister. There are statutory restrictions on who the PM can recommend for appointment. - The Lord Chancellor is now responsible for the administration of the court system, and also holds the post of Secretary of State for Justice although this dual role has been subject to some criticism.

What is the structure of government departments?

- The business of the central Executive ('the government') is divided into administratively distinct sections which are led by a senior politician, usually referred to as the Secretary of State, though some have special titles, notably the Chancellor of the Exchequer. Secretaries of State are members of the Cabinet.

When judges are 'sworn in', what are the two oaths they take?

- The first oath is allegiance to the sovereign. - The second is the 'judicial oath', which contains the following words: "I will do right by all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will".

What conventions relate to the Executive?

- The monarch acts in accordance with the advice given by her Ministers (e.g. with regard to proroguing Parliament). - The monarch will not exercise her legal right to refuse royal assent to bills passed through Parliament. - The monarch will appoint as Prime Minister the leader of the political party which is able to command the confidence of the House of Commons. - The Prime Minister chooses the Cabinet Ministers (i.e. the heads of government departments). - The Prime Minister and the Chancellor of the Exchequer must be MPs. - After a vote of no confidence by the House of Commons, the government will resign and advise the monarch to dissolve Parliament. This leads to a general election. (Though note the impact of the Fixed-term Parliaments Act 2011.) - The monarch must be asked for consent to proposed legislation affecting the interests of the monarchy.

What is the monarch's current role in the UK?

- The monarch herself now has very limited personal powers over the conduct of government. - However, the activities of government are carried out in the name of the monarch. This is why the Executive (the government) is interchangeably referred to as 'the Crown'. The United Kingdom Executive is formally referred to as 'Her Majesty's Government'.

What did the Constitutional Reform Act of 2005 do?

- The most senior court in the United Kingdom was a part of the House of Lords - The 'Lords of Appeal in Ordinary' or the 'law Lords' as they were commonly known, were 12 judges appointed as members of the House of Lords to hear appeals from the lower courts, as the 'Appellate Committee of the House of Lords' - This reflects the historical origins of the House of Lords as advisers to the Sovereign, who also had judicial powers. - In 2005 the House of Lords' judicial function was separated from Parliament - This also marked the end of the Lord Chancellor's combined role as head of the judiciary, a member of the executive, and Speaker of the House of Lords.

What does having the majority of seats in Parliament mean in practice?

- The political party which wins an overall majority of seats in the House of Commons at general election will form the government. - Its leader becomes the Prime Minister. - 'Overall majority' means that the number of seats won by the winning party in an election is more than the combined number of seats for all the other parties in the new Parliament. - If no single party wins a majority of seats, a 'hung Parliament' results - The biggest party can form a minority government, or enter a coalition with another party in order to create an overall majority. - In order for the government of the day to carry out its legislative agenda effectively, it does need a majority of seats (i.e. MPs who are members of the ruling party, who will vote for its legislative proposals) in the House Commons.

What is the power and structure of the Executive in the UK?

- The power of the state in the United Kingdom is divided between and exercised by the three organisations of government: the executive, the legislature (Parliament) and the judiciary (Courts and Tribunals) The basic structure of the executive can be visualised as follows (although monarch's role - nominal & symbolic) - The monarch - The Prime Minister - Cabinet (22 senior government ministers called 'Secretaries of State') - Government departments (run by politically independent civil servants)

What is the Carltona principle?

- The principle that the actions of government department officials are synonymous with the actions of the Minister in charge was established in the case of Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA). The judgment was given by Lord Greene, Master of the Rolls : "In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are so multifarious that no responsible minister could properly attend to them [...] the duties imposed on ministers are normally exercised [under their authority] by responsible officials of the department. Public business could not be carried out if that were not the case." - Ministers remain answerable to Parliament for such decisions, however. - Limits on the power of the executive - The government can only act if it is expressly authorised, either by statute or common law, to do so. - If the government acts in excess of the powers it is given, the administrative court will intervene - not of its own accord, but if a claim is started against the government. - The legal mechanism by which individuals or groups, who assert that the government has acted unlawfully in this way, can make such a claim, is called 'judicial review'.

Why have a constitutional at all?

- The purpose of a constitution (whether codified or uncodified) is to regulate - and so make as predictable as possible - the exercise of power by the state. Predictability is essential for the peaceful and fair functioning of society.

What is the Royal Prerogative?

- The royal prerogative or 'Crown prerogative' refers to powers that are theoretically and nominally invested in the monarch, and do not require the consent of Parliament to use - In practice, the monarch does not act on her own initiative, but on advice of Prime Minister or government ministers - with the approval of the Prime Minister

What is sovereign power?

- The word 'sovereign' in constitutional law has more than one meaning. It originally meant simply the monarch (King or Queen). Today, it can still be used to refer to the monarch ("the Sovereign"), but is also understood to mean the power of government overall, through its various agencies. - Dicey's definition also refers to the 'distribution and exercise' of this power. This is a reference to how power is divided between the different organisations of the state.

An essential concept in public law is the delegation of power. Explain this.

- This means the lawful exercise of power, granted to a minister by legislation or under common law, to a government official of lower rank working in the same department. E.G. granting of passports - This is a prerogative power of the Crown, exercised by the Secretary of State for the Home Department (the 'Home Office') - However, the Secretary of State could not personally review and decide all passport applications! Therefore, this power is delegated to passport officers. - When reading legislation, which gives powers to, and imposes duties upon, government ministers, you will see wording like this :"the Secretary of state shall [...]" or "the Secretary of State must [...]". - Bear in mind that in practice, the power or duty will be exercised by / imposed on an official of lower rank, identified in a 'scheme of delegation'.

Summarise the role of the judiciary in the UK?

- To determine the outcome of legal disputes between individuals (natural or legal persons). - To decide the appropriate punishment in criminal cases. - In the case of the Administrative Court, to determine whether the government has lawfully exercised its powers (judicial review) - The Administrative Court is where most public law claims begin - Appeals lie to the Court of Appeal (Civil Division), and ultimately the Supreme Court.

Until the 17th century, where was power mostly concentrated?

- Until end of 17th century - power concentrated in Crown (King or Queen) - Created the law & above the law - Erosion of this monarchical power over centuries - gave rise to different organisations of the state: Parliament, the Executive (govt) and Judiciary (judges)

What do junior ministers do? (part of the executive)

- Within each department or ministry, there are also several junior ministers - second rank is normally known as a Minister of State and the third rank as a Parliamentary Under-Secretary of State - Colloquially, all these officials are known as 'Ministers'. - The number, names and responsibilities of ministries are not fixed - governments can, and often do, make changes. - It is important to understand that all these Ministers are political appointees chosen by the Prime Minister. - If there is a change of government, the Ministers will leave their posts.

Is it correct to say that the UK has no written constitution?

- the UK does have a body of rules - both written and unwritten - which allocate and regulate the functions of the state. - It is incorrect therefore to say that the UK "has no written constitution". - A more accurate statement is that the constitution of the UK is "uncodified" in a single document.

What are the 3 functions of a state?

1) The Legislature 2) The Executive 3) The Judiciary

What was the Bill of Rights?

1689 - William III and Mary II - passed Bill of Rights in 1689 - Landmark Act of Parliament, affirmed Magna Carta, limited royal power, reaffirmed certain civil rights - Seen as est. concept of parliamentary sovereignty, still referred to today as key source of constitutional law

What is a state?

A 'state', for the purposes of constitutional law, takes its definition from Article 1 of the Montevideo Convention on Rights and Duties of States (1993). 'The State [...] should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states'

What is 'justiciability?

A question of whether or not a court has the authority to address a legal issue - In the public law context, not all government decisions are reviewable by the Administrative Court, or by a Tribunal with judicial review jurisdiction. This reflects the principle of the separation of powers. - There are some government acts (usually carried out under the exercise of prerogative power) which are seen as non-justiciable, meaning that the courts accept that they have no jurisdiction to decide whether the act is lawful - The reason for non-justiciability is that the question is a purely political one, and so not suitable for determination by judges. - However, all government powers are legally finite: one of the courts' key roles is to determine where the boundaries of power lie.

What is the Cabinet Manual, 2011?

Constitutional conventions are defined in the Cabinet Manual (1st edition, 2011) as: - "rules of constitutional practice that are regarded as binding in operation but not in law" The Cabinet Manual - A 'guide to laws, conventions and rules on the operation of government' - It sets out in detail how the executive should operate First published in 2011 under the coalition government of David Cameron, the introduction explains: - "The Cabinet Manual sets out the internal rules and procedures under which the Government operates. For the first time the conventions determining how Government operates are set out in one place. Codifying and publishing these sheds welcome light on how the Government interacts with other parts of our democratic system".

What are constitutional conventions?

Conventions are rules about the conduct of government which fall short of being enforceable laws, but are still agreed upon and should be respected. Conventions are generally: - Informal rules of political practice - Developed in an evolutionary way, according to the political standards of the time - Without any clear source in legislation or case law An example is that the Queen does not refuse royal assent to Acts of Parliament once they have passed the House of Commons and the House of Lords.

What conventions relate to the judiciary?

Conventions relating to the judiciary - Judges must not be politically active (in addition to offending convention, this would risk the appearance of judicial bias and undermine the parties' right to a fair trial). - Parliament must not criticise the professional conduct of judges. - When the executive criticises the judiciary, either explicitly (as exemplified by Boris Johnson, the Prime Minister, who gave his view in September 2019 that the Supreme Court's decision that he had unlawfully prorogued Parliament was "wrong"), or implicitly, it may be argued that they offend the principle of the separation of powers and the rule of law.

What is the 'separation of powers'?

Fundamental principle of functioning constitutional democracy - That is a system of checks and balances - Prevents a single organisation of the state becoming too powerful - Underpinned by a system of rules (law) - apply to everyone equally (incl. most powerful)

How did Lady Hale argue that the Supreme Court had become the guardians of the UK's constitution?

In a speech given on 9 November 2016, the then President of the Supreme Court, Lady Hale, said that: "we [the Supreme Court] have definitely become the guardians of the United Kingdom constitution". Lady Hale gave three reasons for this : - The Justices rule on the validity of laws passed by the devolved legislatures in Scotland, Wales and Northern Ireland. - They restrict the government to the exercise of powers within the limits that Parliament has set: "this is nothing new. The higher courts have been doing this for centuries [...] in this we see ourselves as servants of the sovereign legislature". - They "protect the fundamental rights of individuals against encroachment by the State".

What is one of the most contentious points of constitutional law and why?

Most politically contentious - departure of UK from European Union - Main point of argument is how much govt can do without the consent of Parliament - Debate has been at the heart of British politics since beginning of Parliamentary system

What are the two main types of Parliamentary committee?

Select committees - Permanent committees that investigate the work of individual government departments or broader policy areas. Public bill committees - Appointed to debate and amend proposals for new legislation.

What are 3 examples of constitutional documents in the UK?

The Magna Carta 1215, Bill of Rights 1689 & Human Rights Act 1998

What are the devolved bodies responsible for their nations?

The Scottish Parliament The Scottish Government The National Assembly for Wales The Welsh Government The Northern Ireland Assembly

How was the issue of justiciability the first question for the Supreme Court in Cherry and Miller (No 2) [2019] UKSC 41.

The issue of justiciability was the first question for the Supreme Court in Cherry and Miller (No 2) [2019] UKSC 41. - The Court rejected the government's argument that the prorogation of Parliament was a purely political issue and therefore not justiciable. Judges as guardians of the constitution? - There is no separate and special constitutional court in the United Kingdom, and questions of constitutional law are determined in the 'ordinary' courts - ultimately, the Supreme Court.

Where there is a conflict between the law and a convention, which will prevail?

The law - Although the Courts cannot enforce conventions, there may be political consequences for breach. - In the case of R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5, the Supreme Court rejected the argument that the government was legally bound to seek the consent of the Scottish Parliament before triggering Article 50 and so the UK's exit from the EU. - This argument was based on the fact that the Sewel convention has, since 2016, been specifically referred to in s.28(8) of the Scotland Act. - However, the Supreme Court decided that s.28(8) functioned as an acknowledgement of the convention; it did not create a new rule with any legal force.

What does the legislature do in the UK?

The legislature is the body that enacts new law, and repeals or amends existing law. In the United Kingdom, this function is said to be carried out by 'the Queen in Parliament'. In practice, this means the House of Commons and the House of Lords ; the Queen's role is limited to granting 'royal assent' to new laws.

From where do government departments derive their power?

The powers of government departments are derived from statute (legislation which has been approved by Parliament) or the common law - usually the royal prerogative. The internal administrative arrangements of government departments are generally made under prerogative powers, except for the appointment of accounting officers.

What does the judiciary do in the UK?

This is the body of judges of all levels of seniority, who are responsible for the enforcement of criminal and civil law and the adjudication of disputes between individuals, as well as between individuals and the state.

What does the executive do in the UK?

This is the body or bodies which formulate and implement policy within the law. In the UK, the executive consists of the Prime Minister and Cabinet, the various government departments (Ministries), a politically neutral civil service, and other bodies carrying out government functions at the local level, e.g. county and London Borough councils.

Explain the history of the devolved nations and how they joined the UK.

Under the Laws in Wales Acts of 1535-1542, the administration of Welsh territories was fully incorporated into the Kingdom of England. The beginnings of the United Kingdom can be traced back to 1707, the date of political union between England and Scotland to form 'Great Britain'. In 1801 the Acts of Union joined the Kingdom of Ireland to England, Wales and Scotland, creating 'the United Kingdom of Great Britain and Ireland'. As a result of extremely complex political and social forces, southern and western (principally Catholic) Ireland seceded from the United Kingdom in 1922. These 26 counties became the Irish Free State and then, in 1937, the independent Republic of Ireland (though this was not formally declared until 1949). Six counties in the (principally Protestant) north-east of Ireland remained as part of the United Kingdom - the new province of Northern Ireland.